DOL Home > OALJ > Whistleblower > Roberts v. USDOL, No. 97-3819 (6th Cir. June 23, 1998)(unpublished) |
F I L E D JUN 23, 1998. LEONARD GREEN, Clerk
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UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LINDA ROBERTS,
Petitioner,
v.
UNITED STATES DEPARTMENT OF LABOR,
Respondent.
Before MOORE, CLAY, and GILMAN, Circuit Judges.
Linda Roberts petitions for review of a final decision and order of the Administrative Review Board dismissing her complaint filed under the Energy Reorganization Act, 42 U.S.C. § 5851, as barred under the applicable statute of limitations. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
Roberts was employed by the Battelle Memorial Institute for more than 14 years until she was fired on July 18, 1994. On January 27, 1995, petitioner wrote a letter to a supervisory investigator with the Department of Energy which has been construed as her employment discrimination complaint filed under the Energy Reorganization Act. The complaint was referred to the Department of Labor, and the District Director of the Department of Labor determined that the complaint was untimely. Petitioner appealed that determination. An Administrative Law Judge (ALJ) ordered the parties to show cause why the complaint should not be dismissed as untimely, and the parties responded. The ALJ recommended that the complaint be dismissed, and petitioner twice moved for reconsideration. The motions for reconsideration were denied, and the Administrative Review Board adopted the
ALJ's recommended order and dismissed the complaint. Petitioner filed a timely petition for review in this court.
On appeal, petitioner contends that she wrote a letter of complaint to the Department of Energy on January 12, 1995, within the period provided under the Energy Reorganization Act. The government responds that petitioner's complaint was untimely, that no basis for tolling exists, and that petitioner's earlier letter of complaint does not appear of record and does not constitute a complaint under the Energy Reorganization Act. In addition, the government moves to strike exhibits filed by petitioner in the joint appendix including what purports to be plaintiff's January 12, 1995, letter of complaint on the ground that the exhibits were not part of the record before the Department of Labor.
Generally, this court reviews an agency action in an Energy Reorganization Act case to determine whether it is arbitrary, capricious, or unsupported by substantial evidence. Bartlik v. United States Dep't of Labor, 73 F.3d 100, 102 (6th Cir.1996). However, legal conclusions are reviewed de novo with some deference accorded the agency's conclusions because the agency is charged with administering the statute, and findings of fact are reviewed to ensure that substantial evidence supports them. American Nuclear Resources, Inc. v. United States Dep't of Labor, 134 F.3d 1292, 1294 (6th Cir.1998). Under the Energy Reorganization Act, an employee who believes that she was fired for identifying safety concerns and quality problems may file a discrimination claim with the Secretary of Labor within 180 days of the firing. See Hill v. United States Dep't of Labor, 65 F.3d 1331, 1335 (6th Cir.1995). Here, no substantial evidence supports the Administrative Review Board's finding that petitioner's January 12, 1995, complaint did not constitute an Energy Reorganization Act complaint.
First, the government correctly asserts that some documents filed by petitioner in the joint appendix including her January 12, 1995, letter were not part of the record before the Department of Labor, and petitioner did not move to supplement the record pursuant to Fed .R.Civ.P. 16(b). Therefore, the documents submitted by petitioner are not properly before this court on appeal. Cf. Chrysler Int'l Corp. v. Cherokee Export Co., 1998 WL 45488 at * 2-3 (6th Cir. Jan.27, 1998)
(unpublished per curiam); Allen v. Minnstar, Inc., 8 F.3d 1470, 1474 (10th Cir.1993). Therefore, the government's motion to strike documents which were not part of the record before the Department of Labor is granted.
Nonetheless, the Administrative Review Board's conclusions about petitioner's January 12, 1995, letter are unsupported by substantial evidence. The letter was not before the Board either, and its characterization of the letter as not constituting a complaint under the Energy Reorganization Act is unsupported in the record. While the Board relied upon the fact that the Department of Labor forwarded the letter of complaint to the EEOC for processing as evidence that the complaint was brought under an Executive Order prohibiting discrimination on the basis of race, color, religion, sex, and national origin, this evidence is unsubstantial under the circumstances of this case. Petitioner denies that she filed the complaint pursuant to the Executive Order prohibiting discrimination on the basis of race, color, religion, sex, and national origin. Although petitioner may have been remiss in not filing the letter of record, it is not clear that plaintiff has a copy of her original letter. Clearly, the letter would be part of the record had the Department of Labor filed it as a complaint under the Energy Reorganization Act. In any event, we conclude that the only evidence of record that supports the Board's determination that the January 12, 1995, letter did not constitute a complaint under the Energy Reorganization Act is not substantial. Under these circumstances, we conclude that a remand is warranted so that the nature of the letter can be more precisely determined.
For the foregoing reasons, the motion to strike is granted, the decision of the Administrative Review Board is vacated, and the case is remanded to the Administrative Review Board for further proceedings. Rule 9(b)(3), Rules of the Sixth Circuit.
ENTERED BY ORDER OF THE COURT
s/ Leonard
Green
Clerk